Banks v. Krueger

ENTRY GRANTING WRIT OF HABEAS CORPUS AND DIRECTING
ENTRY OF FINAL JUDGMENT

HON.
WILLIAM T. LAWRENCE, JUDGE

I.

George
Banks is in federal custody in this District at the United
States Penitentiary in Terre Haute, Indiana. He seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2241, arguing
that the Federal Bureau of Prisons (“BOP”)
improperly denied his request for a retroactive designation
under 18 U.S.C. § 3621. For the reasons explained below,
the BOP's denial of Mr. Banks's request was based on
an error of law and thus constitutes an abuse of discretion.
Mr. Banks's § 2241 petition is therefore
granted.

II.

Mr.
Banks was arrested and placed in Pennsylvania state custody
on February 25, 2011. He was indicted on federal charges on
March 16, 2011. During the subsequent months, Mr. Banks made
multiple appearances in federal court pursuant to a writ of
habeas corpus ad prosequendum, before being returned to state
custody. On May 10, 2013, Mr. Banks was sentenced to 120
months' imprisonment in the United States District Court
for the Middle District of Pennsylvania (“the federal
sentence”). The federal district court made no decision
regarding whether the federal sentence would run concurrently
or consecutively with any future state sentence. Mr. Banks
was returned to state custody and the federal judgment was
filed as a detainer.

The
next month, on June 13, 2013, Mr. Banks was sentenced in
state court to two to five years' imprisonment for
various crimes (“the state sentence”). He was not
given any jail credit. Mr. Banks asserts in his habeas
petition that the state court ordered his state sentence to
run concurrently with his federal sentence.

Mr.
Banks remained in state custody until July 2, 2015, when his
state sentence was completed. He was then transferred to
federal custody. The BOP credited 839 days-from February 25,
2011 (the date of his arrest) to June 12, 2013 (the date
before the state sentence)-to Mr. Bank's federal
sentence, as these days were not credited to his state
sentence. But Mr. Banks was not credited any days for the
time he spent serving his state sentence.

Mr.
Banks submitted a Request for Administrative Remedy with the
BOP, asking that his federal sentence run concurrently with
the state sentence. In his request, he stated: “I am
requesting a nunc pro tunc designation so that my state [and]
federal conviction[s] [and] sentences will run
concurrent[ly]. The state ordered my sentences to run
concurrent[ly] plus I meet all of the criteria listed in
Barden v. Keohane.” Dkt. No. 7-13 at 2. The
BOP treated the request as one for “nunc pro tunc or
retroactive designation, ” and denied the request. Dkt.
No. 7-16 at 2. The BOP considered the five factors under 18
U.S.C. § 3621(b), Dkt. No. 7-15 at 2, and it determined
that the relevant factors were . . . (2), (3), and (4),
” Dkt. No. 7-16 at 2. It then explained:

The federal judgment was silent on whether your sentence
should run consecutively or concurrently to any other
sentence. Pursuant to 18 U.S.C. § 3584(a), multiple
terms of imprisonment imposed at different times run
consecutively unless the Court orders that the terms are to
run concurrently. Nevertheless, the federal sentencing court
was contacted for a statement concerning its position on a
retroactive designation. The federal sentencing court has not
yet provided a recommendation concerning a retroactive
designation. Based on the foregoing, the [BOP] has determined
that a retroactive concurrent designation is not appropriate
in you case.

Id.

III.

Mr.
Banks challenges the BOP's denial of his request for a
retroactive designation. He maintains that the BOP improperly
denied him credit toward his federal sentence for the more
than two years that he spent in state custody. The respondent
disagrees.

The
Attorney General is responsible for computing the terms of
imprisonment of federal prisoners. See United States v.
Wilson, 503 U.S. 329, (1992). The computation of a
federal sentence is governed by 18 U.S.C. § 3585. The
statute contains a two-step determination: (1) the date on
which the federal sentence commenced; and (2) whether it is
appropriate for any credit to be awarded for time spent in
custody before the federal sentence commenced. See
18 U.S.C. § 3585.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;Under
the doctrine of primary custody, an inmate&#39;s federal
sentence may only commence after the government exercises
primary jurisdiction over him.&rdquo; Pope v.
Perdue, --- F.3d ----, 2018 WL 2057464, *3 (7th Cir. May
3, 2018). &ldquo;In general, the sovereign that first arrests
a defendant takes primary custody over him.&rdquo;
Id. Here, it is undisputed that Mr. Banks was in
state custody from when he was first arrested by state
authorities until July 2, 2015, when he completed his state
...

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